Stage 1
Making a decision on liquidation
The closure of a legal entity must be discussed at an extraordinary meeting of the founders. If the decision is made unanimously, it is recorded. If there is only one member of the company, the decision is personal.
A liquidation commission is formed from among those present. It may include one person (liquidator) or a group represented by an accountant, lawyer, director, founders or third parties. Once the group has been identified, its leader is chosen. Next, he will act as the Applicant.
conclusions
Of the three presented methods for terminating the activities of a legal entity, the most common is declaring it bankrupt. However, each method has its own characteristics.
Reorganization is distinguished by its speed and simplicity, requiring minimal effort. Liquidation allows you to completely stop any activity and pay off debts.
Bankruptcy not only closes a legal entity, but also relieves its manager from the need to fulfill obligations to creditors, which is what attracts most organizations in difficult financial situations.
Stage 2
Notification to the tax authority
When the decision to terminate activities is in hand, you need to fill out form No. P15001 and have it certified by a notary. Next, the documents are sent to the Federal Tax Service, and within 5 working days the tax authority undertakes to issue a Unified State Register of Legal Entities entry sheet with a note that the liquidation of the legal entity has been started.
The deadline for submitting documents is 3 days from the moment of signing the decision (protocol) on liquidation. (Clause 1, Article 62 of the Civil Code of the Russian Federation). Otherwise, the company will receive a fine for late provision of documents.
Sale of an existing business or alternative liquidation of the company
You can, of course, as an option, consider the sale of a ready-made business, which will also be a kind of liquidation of the organization, subjectively for its owner. There are people who, for various reasons, are ready to buy an organization that has existed for a long time, rather than create a new one. For example, they buy organizations to participate in tenders, or to lease some property to the organization. This practice exists and there is nothing illegal here.
It’s another matter if the organization has debts to the budget or contractors. In this case, it is crystal clear to everyone that no buyer will consider acquiring such an organization. In this case, the so-called alternative liquidation is carried out through the sham sale of the company to the so-called nominee director. This scheme is illegal and is subject to criminal liability, so we strongly do not recommend using such a scheme: as a result, you will not get rid of the debt, and you will receive a criminal record. The alternative liquidation of an LLC or an organization with another organizational and legal form of activity has an illegal method, and therefore liability, for more details follow the link.
Stage 6
Drawing up an interim liquidation balance sheet
To do this, you need to report the property that is listed on the balance sheet, provide information about the debt, if any, and indicate the measures that are being taken to repay it. There is no single document template, but the requirements are the same as for financial statements. The finished balance sheet is approved at the meeting of founders.
Next, a notification is drawn up in form P15001. It must be certified by a notary and submitted to the tax authority along with a copy of the publication in the media and the approval protocol. Within 5 working days, the Federal Tax Service Inspectorate undertakes to consider the application and issue a Unified State Register of Legal Entities entry sheet with a note indicating the acceptance of the interim liquidation balance sheet.
Sometimes the PLB itself is required, but this is specific.
Creation and termination of a legal entity.
For a legal entity, the moments of its origin and its termination are very important.
The emergence of a legal entity is its creation and state registration.
There are the following ways of establishing a legal entity.
1. Permitting procedure. The administrative order was used in the USSR. To form a legal entity, permission from the competent government authority and subsequent state registration were necessary. Currently in Russia it is used as an exception to the general rule for the formation of certain types of legal entities - credit and insurance organizations, unions and associations, etc.
2. Regulatory appearance procedure. It is assumed that there will be special regulations governing the emergence and activities of certain types of legal entities. Fulfillment of the requirements provided for in such acts gives the right to recognition of the organization as a legal entity, certified by the fact of its state registration. The regulatory appearance procedure is currently used in Russia.
3. Appearance procedure (contractual). Legal entities are created as a result of the externally expressed intention of the participants to act as a legal entity in the absence of the fact of its state registration. Currently, this procedure is not applied in Russia, and is used to a limited extent abroad (associations in France, non-profit organizations in Switzerland, “de facto” commercial corporations in the USA, etc.).
Termination of a legal entity. Depending on the legal consequences of termination, a distinction is made between reorganization (the rights and obligations of the terminated person are transferred to another person) and liquidation (the termination of a person without transferring his rights and obligations to anyone).
Reorganization of a legal entity (merger, accession, division, separation, transformation) can be carried out by decision of its founders (participants) or a body of the legal entity authorized to do so by the constituent documents.
In cases established by law, reorganization of a legal entity in the form of its division or separation of one or more legal entities from its composition is carried out by decision of authorized state bodies or by court decision.
In cases established by law, reorganization of legal entities in the form of merger, accession or transformation can be carried out only with the consent of authorized state bodies.
A legal entity is considered reorganized, with the exception of cases of reorganization in the form of merger, from the moment of state registration of newly emerged legal entities.
When a legal entity is reorganized in the form of the merger of another legal entity, the first of them is considered reorganized from the moment an entry is made in the Unified State Register of Legal Entities about the termination of the activities of the merged legal entity.
When legal entities merge, the rights and obligations of each of them are transferred to the newly created legal entity in accordance with the transfer deed.
When a legal entity is merged with another legal entity, the rights and obligations of the merged legal entity are transferred to the latter in accordance with the transfer deed.
When a legal entity is divided, its rights and obligations are transferred to the newly created legal entities in accordance with the separation balance sheet.
When one or more legal entities are separated from a legal entity, the rights and obligations of the reorganized legal entity are transferred to each of them in accordance with the separation balance sheet.
When a legal entity of one type is transformed into a legal entity of another type (change of organizational and legal form), the rights and obligations of the reorganized legal entity are transferred to the newly emerged legal entity in accordance with the transfer deed.
The transfer deed and the separation balance sheet must contain provisions on the succession of all obligations of the reorganized legal entity in relation to all its creditors and debtors, including obligations disputed by the parties.
The transfer act and separation balance sheet are approved by the founders (participants) of the legal entity or the body that made the decision on the reorganization of legal entities, and are submitted together with the constituent documents for state registration of newly emerged legal entities or amendments to the constituent documents of existing legal entities.
Failure to submit a transfer deed or separation balance sheet, respectively, along with the constituent documents, as well as the absence in them of provisions on succession of obligations of the reorganized legal entity, entails refusal of state registration of newly emerged legal entities.
Guarantees of creditors' rights.
A legal entity, within three working days after the date of the decision on its reorganization, is obliged to notify in writing the body carrying out state registration of legal entities about the start of the reorganization procedure, indicating the form of reorganization. Based on this notification, the body carrying out state registration of legal entities makes an entry in the Unified State Register of Legal Entities stating that the legal entity (legal entities) is (are) in the process of reorganization.
The reorganized legal entity, after making an entry in the Unified State Register of Legal Entities about the beginning of the reorganization procedure, publishes a notice of its reorganization twice, once a month, in the media in which data on state registration of legal entities is published. If two or more legal entities participate in the reorganization, a notice of reorganization is published on behalf of all legal entities participating in the reorganization by the legal entity that last made the decision on reorganization or a certain decision on reorganization. The notice of reorganization contains information about each legal entity participating in the reorganization, created (continuing activities) as a result of the reorganization, the form of reorganization, a description of the procedure and conditions for creditors to submit their claims, and other information provided by law.
A creditor of a legal entity, if its rights of claim arose before the publication of the notice of reorganization of the legal entity, has the right to demand early fulfillment of the corresponding obligation by the debtor, and if early fulfillment is impossible, termination of the obligation and compensation for related losses, except in cases established by law.
A creditor of a legal entity - an open joint-stock company, reorganized in the form of a merger, accession or transformation, if his rights of claim arose before the publication of a notice on the reorganization of the legal entity, has the right to legally demand early fulfillment of an obligation for which this legal entity is the debtor, or termination of the obligation and compensation for losses if the reorganized legal entity, its participants or third parties do not provide sufficient security for the fulfillment of relevant obligations.
The above requirements can be presented by creditors no later than 30 days from the date of the last publication of the notice of reorganization of the legal entity.
The demands made by creditors do not entail the suspension of actions related to the reorganization.
If claims for early fulfillment or termination of obligations and compensation for losses are satisfied after the completion of the reorganization, legal entities newly created as a result of the reorganization (continuing activities) bear joint liability for the obligations of the reorganized legal entity.
If the obligations to creditors of the reorganized legal entity-debtor are secured by a pledge, such creditors do not have the right to demand the provision of additional security.
Features of the reorganization of credit organizations, including the procedure for notifying the body carrying out state registration about the beginning of the procedure for reorganizing a credit organization, the procedure for notifying creditors of reorganized credit organizations, the procedure for creditors presenting demands for early fulfillment or termination of relevant obligations and compensation for losses, as well as the procedure for disclosing information affecting the financial and economic activities of the reorganized credit organization are determined by the laws regulating the activities of credit organizations.
Liquidation of a legal entity.
Involves its termination without the transfer of rights and obligations by way of succession to other persons.
A legal entity may be liquidated:
- by decision of its founders (participants) or a body of a legal entity authorized to do so by the constituent documents, including in connection with the expiration of the period for which the legal entity was created, with the achievement of the purpose for which it was created;
by a court decision in the event of gross violations of the law committed during its creation, if these violations are irreparable, or carrying out activities without proper permission (license), or in violation of the Constitution of the Russian Federation, or with other repeated or gross violations of the law or other legal acts, or when a non-profit organization, including a public or religious organization (association), a charitable or other foundation, systematically carries out activities that contradict its statutory goals, as well as in other cases provided for by the Civil Code.
A demand for the liquidation of a legal entity on the grounds specified above may be presented to the court by a state body or local government body, which is granted the right to make such a demand by law.
By a court decision on the liquidation of a legal entity, its founders (participants) or the body authorized to liquidate the legal entity by its constituent documents may be assigned responsibilities for carrying out the liquidation of the legal entity.
A legal entity, with the exception of a state-owned enterprise, institution, political party and religious organization, is also liquidated in accordance with Art. 65 of the Civil Code due to his recognition as insolvent (bankrupt). A state corporation or state company may be liquidated as a result of being declared insolvent (bankrupt), if this is permitted by the federal law providing for its creation. A fund cannot be declared insolvent (bankrupt) if this is established by law providing for the creation and operation of such a fund.
If the value of the property of such a legal entity is insufficient to satisfy the claims of creditors, it can be liquidated only in the manner provided for in Art. 65 Civil Code.
The founders (participants) of a legal entity or the body that made the decision to liquidate the legal entity are obliged to immediately notify the authorized state body in writing in order to enter information into the Unified State Register of Legal Entities that the legal entity is in the process of liquidation.
The founders (participants) of a legal entity or the body that made the decision to liquidate the legal entity appoint a liquidation commission (liquidator) and establish the procedure and timing of liquidation in accordance with the Civil Code and other laws.
From the moment the liquidation commission is appointed, the powers to manage the affairs of the legal entity are transferred to it. The liquidation commission acts in court on behalf of the liquidated legal entity.
Liquidation of a legal entity is carried out in the manner prescribed by law.
The liquidation commission publishes in the press, which publishes data on the state registration of a legal entity, a publication on its liquidation and on the procedure and deadline for filing claims by its creditors. This period cannot be less than two months from the date of publication of the liquidation.
The liquidation commission takes measures to identify creditors and receive receivables, and also notifies creditors in writing of the liquidation of the legal entity.
After the deadline for submitting claims by creditors, the liquidation commission draws up an interim liquidation balance sheet, which contains information about the composition of the property of the legal entity being liquidated, the list of claims presented by creditors, as well as the results of their consideration.
The interim liquidation balance sheet is approved by the founders (participants) of the legal entity or the body that made the decision to liquidate the legal entity. In cases established by law, the interim liquidation balance sheet is approved in agreement with the authorized state body.
If the funds available to a legal entity being liquidated (except for institutions) are insufficient to satisfy the claims of creditors, the liquidation commission sells the property of the legal entity at public auction in the manner established for the execution of court decisions.
Payment of sums of money to creditors of a liquidated legal entity is made by the liquidation commission in the order of priority established by Art. 64 of the Civil Code, in accordance with the interim liquidation balance sheet, starting from the day of its approval, with the exception of creditors of the third and fourth priority, payments to whom are made after a month from the date of approval of the interim liquidation balance sheet.
After completing settlements with creditors, the liquidation commission draws up a liquidation balance sheet, which is approved by the founders (participants) of the legal entity or the body that made the decision to liquidate the legal entity. In cases established by law, the liquidation balance is approved in agreement with the authorized state body.
If the liquidated state-owned enterprise does not have enough property, and the liquidated institution does not have sufficient funds to satisfy the claims of creditors, the latter have the right to file a claim in court to satisfy the remaining part of the claims at the expense of the owner of the property of this enterprise or institution.
The property of a legal entity remaining after satisfaction of the creditors' claims is transferred to its founders (participants) who have proprietary rights to this property or rights of obligation in relation to this legal entity, unless otherwise provided by law, other legal acts or constituent documents of the legal entity.
The liquidation of a legal entity is considered completed, and the legal entity is considered to have ceased to exist, after making an entry to this effect in the Unified State Register of Legal Entities.
When a legal entity is liquidated, the claims of its creditors are satisfied in the following order:
- first of all, the claims of citizens to whom the liquidated legal entity is liable for causing harm to life or health are satisfied, by capitalizing the corresponding time payments, as well as for claims for compensation for moral damage;
- secondly, calculations are made for the payment of severance pay and wages of persons working or who worked under an employment contract, for the payment of remuneration to the authors of the results of intellectual activity;
- thirdly, settlements are made for mandatory payments to the budget and extra-budgetary funds;
- fourthly, settlements with other creditors are made.
When liquidating banks that attract funds from individuals, first of all, the claims of individuals who are creditors of banks under bank deposit agreements and (or) bank account agreements concluded with them are also satisfied (except for the claims of individuals for compensation of losses in the form of lost profits and payment of amounts of financial sanctions and claims of individuals engaged in entrepreneurial activities without forming a legal entity, or claims of lawyers, notaries, if such accounts are opened for the implementation of the entrepreneurial or professional activities of these persons provided for by law), the requirements of the organization performing the functions of compulsory deposit insurance, in in connection with the payment of compensation for deposits in accordance with the law on insurance of deposits of individuals in banks and the Bank of Russia in connection with the implementation of payments on deposits of individuals in banks in accordance with the law.
The claims of creditors of each priority are satisfied after full satisfaction of the claims of the creditors of the previous priority, with the exception of the claims of creditors for obligations secured by a pledge of property of the legal entity being liquidated.
The claims of creditors for obligations secured by a pledge of property of a liquidated legal entity are satisfied at the expense of funds received from the sale of the subject of pledge, primarily to other creditors, with the exception of obligations to creditors of the first and second priority, the rights of claim for which arose before the conclusion of the relevant pledge agreement.
The claims of creditors for obligations secured by the pledge of property of a liquidated legal entity that are not satisfied from the funds received from the sale of the subject of pledge are satisfied as part of the claims of creditors of the fourth priority.
If the property of a liquidated legal entity is insufficient, it is distributed among the creditors of the corresponding priority in proportion to the amounts of claims to be satisfied, unless otherwise provided by law.
If the liquidation commission refuses to satisfy the creditor's claims or evades their consideration, the creditor has the right, before the liquidation balance sheet of the legal entity is approved, to file a claim with the liquidation commission. By a court decision, the creditor's claims may be satisfied at the expense of the remaining property of the liquidated legal entity.
The creditor's claims submitted after the expiration of the period established by the liquidation commission for their presentation are satisfied from the property of the liquidated legal entity remaining after the satisfaction of the creditors' claims submitted within the deadline.
The claims of creditors that are not satisfied due to the insufficiency of the property of the liquidated legal entity are considered to be satisfied. Claims of creditors that were not recognized by the liquidation commission are also considered extinguished if the creditor did not file a claim in court, as well as claims the satisfaction of which was denied to the creditor by a court decision.
Stage 7
Drawing up the final liquidation balance sheet
It is accepted when debts to creditors and the budget are repaid, employees are fired, and a referral to the Pension Fund is sent.
The document lists the assets that remain after paying wages, severance pay, debts, taxes, contributions, fines and penalties. The data is approved at the meeting of the founders. The balance of funds and property is distributed among the founders in accordance with their shares.
Bankruptcy procedure for an organization
The bankruptcy procedure of an organization does not mean complete ruin; it can be aimed at preserving the assets of the organization. That is, lawyers for a financially insolvent company are trying in every possible way to clear the company of debts, while protecting it from unlawful actions of creditors, and are looking for an opportunity to sell or restructure the business so that the owner does not resort to complete liquidation of the business.
The bankruptcy procedure of an organization should be carried out exclusively by professionals who will protect the interests of the owner, minimizing his losses as much as possible.
Stage 8
Submitting documents to the tax authority
To close an LLC, you need to submit the following package of documents to the Federal Tax Service:
- Final liquidation balance sheet and protocol on its approval;
- Application in form P16001 (certified by a notary);
- Receipt for payment of state duty;
- Certificate from the Pension Fund of Russia.
You need to submit documents to the tax office at your place of registration. Within 5 working days, the tax authority undertakes to issue a sheet of registration for the Unified Legal Entities with a note about the liquidation of the company.
Basic principles
The leading feature of the process of emergence of a legal entity is the principle of formal certainty, in which the procedure for creation and registration is clearly expressed within the framework of existing norms of law.
Russian legislation establishes other equally important principles for the emergence of legal entities:
- legality states that all procedures are strictly regulated within the framework of the law;
- reliability indicates that the information generated in the process must be reliable;
- initiative implies the will of the organizers and their initiative to create;
- control implies revision and audit by the competent authorities of all processes of the emergence of a legal entity;
- uniformity of procedures and methods of emergence and termination of a legal entity;
- stages and sequence of all state registration operations.
I have a question
Can the Federal Tax Service refuse to liquidate? Yes maybe. Most often, refusals are associated with errors in filling out documents or inconsistencies in the interim and final liquidation balance sheet.
Can the Federal Tax Service Inspectorate liquidate a company unilaterally? Yes maybe. Firms that are closed in court, evade filing reports for 12 months and do not conduct transactions on accounts (No. 129-FZ), were created with gross violations, operate without a license, violate the law, provide false information (Article 61 of the Civil Code of the Russian Federation ).
Do I need legal assistance from the tax authority? Step-by-step instructions for liquidating a legal entity 2020-2021 may be modified taking into account amendments to laws. We recommend that you consult with a specialist and choose the appropriate strategy.
Historical aspects
Let us consider the main aspects of the history of the emergence of legal entities. The essence of the concept of a legal entity appeared in Ancient Rome. At that time, it was understood as the state itself, and a little later it began to mean a group of united individuals with common goals and efforts based on partnership.
In the Middle Ages, trade guilds appeared as associations of groups of people (merchants) that were similar to legal entities.
The first doctrine in the theory of the emergence of legal entities was the work of F. C. Savigny. He became the founder of the theory of "fictions". According to his theory, a legal entity was considered as a unit of law that was artificially created.
Further, the theory of “personalized goal” (A. Brinz) developed. According to this theory, the emergence and creation of a legal entity was associated with the management of certain property. This understanding is already closer to modern interpretations.
Further, the founder of the theory of social reality, Salley, began to understand a legal entity as a subject of legal relations before the state.
Studying the Soviet works of scientists in the theory of development of legal entities, we highlight the main provisions:
- during its emergence and creation, a legal entity was considered as a subject, behind which the state always stands;
- the addition stated that in addition to the state, the legal entity is also supported by its director;
- a legal entity was considered a full-fledged subject of legal relations.
The theory of N.V. is interesting. Kozlova, which raises the issue of artificial legal personality. That is, a legal entity is artificially created as a subject of socio-economic relations. Its emergence is connected with the will of its founders.
